Editorial: Justice in hindsight

Decades-old case confirms the need for due process in criminal prosecutions

March 20, 2013

There was an arrest, a trial and a sentence. But what really happened the night in 1990 that Timothy Kurt Askew, 35, was stabbed to death and robbed at the Oyster Point Econo Lodge may forever remain a mystery.

David Boyce, now 42, was tried and convicted for Mr. Askew's murder in 1991. Sentenced to life behind bars, he has spent much of that time fighting his conviction in Virginia state courts. This week, a federal court determined his constitutional rights had been violated during the trial. The ruling is not a declaration of Mr. Boyce's innocence; it means there were certain defects in the process such that he must be either given a new trial or be released from prison.

The decision is important because it highlights the fundamental constitutional protections our legal system guarantees to every citizen charged with a crime. Due process is not just a fancy legal term; it is at the heart of the hard-fought liberty our Founding Fathers deemed essential to our nation's charter.

The case against Mr. Boyce was based on circumstantial evidence — information used to create an inference rather than conclusive proof. Mr. Boyce was Mr. Askew's roommate in a motel room down the hall from the room where the killing took place. A motel clerk said he had seen a suspicious-looking man with shoulder-length hair at the motel that night, and a Newport News police technician testified Boyce had "almost shoulder length" hair the day he was arrested.

Yet because a police photograph taken the same day reveals Mr. Boyce had short or medium hair, the technician's testimony was, in the trial court's words, "demonstrably false." Given there was no physical evidence linking Mr. Boyce to the crime scene, that photograph could have been a critical piece of evidence to refute the witnesses' testimony. It wasn't discovered by Mr. Boyce's lawyers until 2008, after the Mid-Atlantic Innocence Project had taken up the case.

Because a Virginia procedural rule requires that defendants must raise such an issue within 21 days of the trial, Virginia courts throughout the appellate process ruled that Mr. Boyce could not reopen the case, even though the trial judge acknowledged that the exculpatory photo would have undermined his prosecution. (In addition, the case against Mr. Boyle involved flip-flop story of a jailhouse informant who twice changed his testimony as to whether Mr. Boyce had confessed to the crime in jail.)

Rules that require all relevant evidence to be presented at trial are based on sound policy: for court proceedings to be efficient, the parties ought not to be able to go back for a re-do simply because in hindsight they could have presented a better case. Furthermore, higher courts are loathe to second-guess trial judges or juries who heard and observed witnesses live in the courtroom.

Yet in cases involving the suppression of key evidence, the changing of testimony of a key witness, or the later discovery of scientific proof that could not have been provided at trial due to the lack of technology at the time, then strict procedure ought to yield to principles of fairness. Perhaps it's time Virginia looked at specific exceptions to its 21-day requirement.

At the very least, as in the Boyle case, under such circumstances the defendant ought to be given another trial. Maybe he would be convicted again, but at least the process could be free from defects.

Of course, the problem in a case like this is that even if the original case was strong, it can be difficult to prepare a prosecution and produce credible witnesses when so many years have passed. The prosecution is now in the difficult position of trying to decide whether to let a man go free whom they once believed guilty of murder.

Whether Mr. Boyce committed a brutal crime or was merely in the wrong place at the wrong time, he should have been given a fair trial. And because he wasn't, the "truth" is more elusive than ever.